National Consumer Disputes Redressal
Maharashtra Mathadi And Unprotected ... vs Tata Iron And Steel Company on 16 November, 2006
Equivalent citations: III(2007)CPJ221(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. Maharashtra Methadi and Unprotected Labour Board feeling aggrieved by the order of State Commission in complaint No. 223 of 1994 decided on 4.7.1997 filed this appeal. The State Commission directed it to pay Rs. 9,96,000 with interest @ 15% till payment along with cost of Rs. 5,000 for the deficiency in service by alleged disruption of service by illegal strike of the labourers of the Methadi Board.
2. The facts in brief are that the complainant/respondent - Tata Iron & Steel Co. Ltd. having its sales office at Nagpur despatched one rack of 33 wagons containing steel material from Tatanagar on 14.10.1991. The wagons reached at Itwari Railway Station on 20.10.1991 at 2.40 hours and were placed in the goods shed siding in the yard. None of the wagons could be unloaded because of illegal strike by labourers of the Methadi Board. It is not in dispute that the wagons could be unloaded only by the labourers of the Methadi Board. They had been engaged by M/s. J.D. Sharma & Sons. Since the complainant could not keep rack of 33 wagons at that place due to heavy demurrage charges and since the goods could not be sold, the goods were rebooked from Itwari, Nagpur to Laxmibai Nagar, Indore on 25.10.1991. The complainant had suffered loss on account of demurrage charges of Rs. 49,527 plus requisite fee to the tune of Rs. 9,47,384. This amount was claimed with interest @ 24% with cost of Rs. 15,000. Since M/s. J.D. Sharma & Sons were the only handling contractors and in no way responsible for the above loss, no relief was claimed against him.
3. The appellant-Board contested the matter inter alia on the ground that the Board was looking after the welfare of the manual workers, doing the work of loading, unloading and for that purpose 25% levy was taken from the labourers. The Board was working on no loss-no profit basis and it could not be said that Board is connected in any prof it making activity. According to Section 27 of Maharashtra Mathadi Hamal and Other Manual Workers (Regulation of Employment and Welfare) Act, 1969, no suit, prosecution or other legal proceedings shall lie against the State Government or the Board or the Chairman, Secretary or any Member of the Board or Advisory Committee, or any Inspector or any Officers of the Board for anything which is in good faith done or intended to be done in pursuance of this Act or any scheme or any Rule or Order made thereunder. Consequently, the claim was not maintainable. Further, the complainant neither approached any Officer of the Board nor engaged services of labourers of Mathadi Board nor wrote any letter to the Board to supply workers.
4. We have heard the learned Counsel for the parties and gone through the record.
5. It would be pertinent to note the following undisputed facts:
(i) The Mathadi Workers were the only workers engaged by the Railway for loading and unloading of the goods received in railway wagons.
(ii) These workers were registered with the Board and the Board represented the interests of the workers.
(iii) The strike was illegal and had started from 20.10.1991 and lasted till 26.10.1991.
(iv) The rack was received on 20.10.1991 and there was no chance of unloading of the material from these wagons in the light of the letter written by the President of the Board to Mukadam on 26.10.1991 while informing that Mathadi workers were suspended because of illegal strike. There was letter of Deputy Labour Commissioner and President of the Board indicating the numbers of the wagons.
(v) The Railways have claimed the demurrage charges of Rs. 49,527 by letter dated 11.12.91. The Railways also permitted the complainant to remove goods to Indore vide letter dated 25.10.91.
6. Having heard the learned Counsel for the parties and gone through above background, we proceed to consider the following questions:
(i) Whether the complainant/respondent was a consumer?
(ii) Whether the appellant-Board could be held liable for the deficiency in service on account of strike of the Mathadi Board?
(iii) Whether the complaint is barred of Section 27A of the Act?
(iv) Whether the complaint was barred by time?
(v) What shall be impact of not seeking any relief against J.D. Sharma and Sons?
(vi) Whether respondent is entitled to any relief?
7. We take up point No. 1. The work of unloading and loading of the material was being supervised by M/s. J.D. Sharma & Sons during the relevant period for and on behalf of the complainant company. Accordingly, the Mathadi labourers were engaged for the purpose of unloading of rack of 33 wagons containing the steel materials from Itwari (South Eastern Railway) on 20.10.199l. The said 33 racks could not be unloaded because of illegal strike of labourers of Mathadi Board. Since the complainant/respondent was the beneficiary of the contract, it would fall within the definition of Section 2(a)(d)(ii).
8. In this regard, 'Service' defined in term 2(o), also includes service of any description which is made available to potential users but does not include the rendering of any service free of charge or under a contract of personal service, this in addition to services specified in the clause. It is nobody's case the services rendered by Mathadi Workers were free of charge. Consequently the services rendered by Mathadi labourers would fall within the definition of word 'service' as defined in Section 2(1)(o). The complainant/respondent would be consumer in view of the definition of Clause (d)(ii) of Section 2(1) of theConsumer Protection Act.
9. Hie question of applicability of exclusion clause on the ground of plea of "commercial purpose" depends on the applicability of amendment which has been brought into effect w.e.f. 15.3.2003. In this case, the complaint itself was filed much before this date on 10.8.1993. It is noteworthy that Sub-clause (ii) of Clause (d) of Section 2(1) of Consumer Protection Act was different before the aforesaid amendment w.e.f. 15.3.2003 and then it reads as under:
(d) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires [or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires [or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.
10. It may be mentioned that neither the phrase "but does not include a person who availed of such services for any commercial purpose" existed there nor the explanation as it existed then specified that the exclusion on the ground of commercial purpose, would be applicable to services also. The amendment to insert the phrase "but does not include a person, who availed of such services for any commercial purpose" was made on 15.3.2003. This being a substantive provision and not a procedural one could not be applied with retrospective effect. As such, we are of the opinion that the complainant/respondent was a consumer being beneficiary of the contract to hire Mathadi labourers.
11. As regard, the point numbers 2 and 3, Section 27A in Maharashtra Mathadi, Hamal and other Manual Workers (Regulation of Employment and Welfare) Act, 1969, reads as under:
No suit, prosecution or other legal proceedings shall lie against the State Government or the Board or the Chairman, Secretary, or any Member of the Board or Advisory Committee, or any Inspector or any other Officers of the Board for anything which is in good faith done or intended to be done in pursuance of this Act, or any scheme or any Rule or Order made thereunder.
12. This is a protection provided for the action taken in good faith and this does not debar a person to approach a particular Forum. There is a difference between availability of the alternative Forum and total denial of any Forum. Wherever alternative Forum is concerned, Section 3 of the Consumer Protection Act could be pressed into service. But where the suit is barred by provisions like 27A of the said Act, Section 3 would not come to the rescue of the complainant.
13. However, it is required to be seen whether there is anything, which indicates that the Boar d or any Chairman or Secretary had not acted in good faith, contrary to the requirements of the provisions of the Act. The Board has taken prompt action against the labourers. No mala fides have been alleged to show lack of good faith. As such, the appellant could not be proceeded against, on thebasis of the complaint in this case.
14. It may further be mentioned that in the case of Consumer Unity & Trust Society, Jaipur v. Chairman & Managing Director, Bank of Baroda, Calcutta and Anr. , while considering the question of strike, the Hon'ble Supreme Court after considering the term service, deficiency etc. observed as under:
Even though the depositors were deprived of the service of the Bank but the deficiency did not arise due to one of the reasons mentioned in Clause (g). The shortcoming in the service by the Bank did not arise due to failure on the part of the Bank in performing its duty or discharging its obligations as required by law. Since the depositors were prevented to avail of the services of the Bank not because of any deficiency on the part of the Bank but due to strike resorted to by the employees who almost physically prevented the Bank from functioning, the failure of the Bank to render service could not be held to give rise to claim or recovery of any amount under the Act. Further, the power and jurisdiction of the Commission is to award compensation under Section 14(1)(d) of the Act as it has been made applicable to the Commission, by Sub-rule (b) of Rule 19 of the Rules framed under the Act. Clause (d) of Sub-section (1) of Section 14 is extracted below-
to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence, of the opposite party.
Each of these expressions used in sub-section are of wide connotation and are fully comprehended both in common and legal sense. Negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. But the negligence for which a consumer can claim to be compensated under this sub-section must cause some loss or injury to him. Loss is a generic term. It signifies some detriment or deprivation or damage. Injury too means any damages or wrong. It means "invasion of any legally protected interest of another". Thus the provisions of Section 14(1)(d) are attracted if the person from rohom damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages. In other words, loss or injury, if any, must flow from negligence. Mere loss or injury without negligence is not contemplated by this section. The bank has not been found to be negligent in discharge of its duties. Therefore, even if any loss or damage was caused to any depositor but it was not caused due to negligence of bank then no claim of damages under the Act was maintainable.
(Emphasis supplied)
15. If we take into consideration prompt action against Mathadi Labour, it is difficult to say that the Board was not acting in good faith and due care and caution was not kept to ensure that strike does not adversely affect the work. Failure to end the strike forthwith, is not material to prove good faith.
16. This judgment of Consumer Unity & Trust Society, Jaipur v. Chairman & Managing Director, Bank of Baroda, Calcutta and Anr. was announced on 31.1.1995. While taking contrary view this judgment does not appear to have been considered in the judgment of this Commission in the case of Common Cause v. Union of India and Ors. Original Petition No. 153 of 1993 decided on 9.5.1996.
17. For the purpose of deciding question of good faith, legal or illegal strike would stand on same footing. Rather, illegal strike stands on better footing for virtually no time is given to a management, due suddenness of the strike while on account of notice given in a legal strike, the management may get some time to make some manoeuvre to avoid losses as far as possible. In any case, it cannot be said that there was any lack of good faith and if there was no lack of good faith, the suit would be barred by the Section 27A.
18. In view of the observations of the Hon'ble Supreme Court in the aforesaid case, we find it difficult to hold the Board deficient in rendering service in view of the illegal strike.
19. As regards limitation, the cause of action arose for the first time on 21.10,1991, The complaint was filed on 10.8.1994. Earlier like other cases for cases of consumer grievances, a period of 3 years was taken to be a usual period and in one case there was an stray observation that no limitation was prescribed, Section 24A was inserted w.e.f. 18. 6.1993 and provided as under:
24A Limitation period - (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay. (Emphasis supplied)
20. The complaint was filed on 10.8.1994 If we go by the 3 years period, it is within the time. But if we see the provision of Section 24A of the Consumer Protection Act, the State Commission was supposed to consider the limitation on the date of admission of this appeal. If we see in terms of Section 24A on the date of filing the complaint, the complaint was barred by time despite the fact that 3 years had not completed.
21. In view of the above findings, the question of not seeking any relief against M/s. J.D. Sharma & Sons has been rendered meaningless. Besides, the complainant/respondent was domimis litis and as such it is for the complainant to seek or not to seek any relief against M/s. J.D. Sharma & Sons.
22. For the aforesaid reasons, we feel that complainant though consumer could not be granted any relief in absence of any negligence on the part of the appellant in terms of Section 14(1)(d), the complaint also being barred by limitation as per provisions of Section 24A of Consumer Protection Act as well as Section 27A of Maharashtra Act.
23. For the aforesaid reasons, we feel that the appeal has to be allowed. The impugned order is set aside; complaint is dismissed and the appeal is allowed accordingly. Parties are left to bear their own cost.